Jeannie Suk Gersen

As recently as 10 years ago, Jeannie Suk Gersen was still telling people that the area of law she specialized in—sexual assault and domestic violence—didn’t hold much interest for the general public. A quiet corner of the profession, she thought. Remembering that now, she laughs. “But, you know,” she adds, “every area of law does end up moving into focus. Because, in the end, law is really about every aspect of our lives.” Which is partly why Gersen, J.D. ’02, has always taken it so seriously. “Words don’t just describe things,” she explains. In the law, “words actually do things.” ... “Jeannie is intellectually fearless,” says Bemis professor of international law Jonathan Zittrain. That’s a common sentiment among her colleagues... “There are a lot of people who are afraid to say things in our business,” says Learned Hand professor of law Jack Goldsmith, “and she’s not afraid to say what she thinks.” ... “Her whole response to Title IX has been very, very striking—and I think completely correct,” says Beneficial professor of law Charles Fried, who was Gersen’s teacher before he was her colleague ... Says her former teacher, Loeb University Professor emeritus Laurence Tribe, “I was always impressed by how both meticulous and yet unconventional her insights were. She would often come at issues in a kind of perpendicular way. Rather than finding a point between A and B, she would say that maybe that axis is the wrong axis.” ... “She has one of those amazing brains,” says Williams professor of law I. Glenn Cohen, who worked on the Harvard Law Review with Gersen. “She was a year ahead of me in law school, and we all regarded her more like a faculty member, even back then. She just seemed to know everything.”

An essay by Jeannie Suk Gersen: Donald Trump is no longer the President of the United States. That is a tremendous relief. It is also the centerpiece of his defense in his upcoming impeachment trial, his second in thirteen months. Scarcely five weeks after the insurrection on the Capitol, the same Senate chamber that was desecrated by Trump’s followers (with one rioter even declaring at the dais that Trump won the election) will be the court of impeachment, to try Trump for “inciting violence against the Government of the United States.” Last week, Senate Republicans tried unsuccessfully to prevent the trial from going forward, by claiming that it is unconstitutional for the body to try a President who is no longer in office. Forty-five Republicans voted to quash the trial on that basis—including Mitch McConnell, who, as Majority Leader, made clear that a Senate trial could not begin before Trump left office. Their ability to rally around that uncertain constitutional argument—and to avert their eyes from the question of Trump’s guilt—appears likely to keep him from becoming the first impeached President to be convicted in the Senate. The Constitution’s Article I, which gives the Senate the “Power to try all Impeachments,” says that the remedy for a conviction “shall not extend further than to removal from Office, and disqualification to hold” federal office. A separate provision, in Article II, says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

An essay by Jeannie Suk Gersen: For years, Carlton F. W. Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trumpand his critics. Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening isis, is not treason, either—though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. “It’s very clear that would have been seen as ‘levying war,’ ” he said. Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached. Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove.

House Democrats filed an article of impeachment against President Donald Trump for the second time Monday, with a promise to move forward with the process if Vice President Mike Pence does not invoke the 25th Amendment by Wednesday. Jeannie Suk Gersen of Harvard Law School and Ben Clements, former chief legal counsel to Gov. Deval Patrick and chair of Free Speech for People, joined Jim Braude to discuss.

An essay by Jeannie Suk Gersen: One day after a mob incited by Donald Trump stormed and ransacked the Capitol, disrupting Congress’s certification of election results, Chuck Schumer, the soon-to-be Senate Majority Leader, and Nancy Pelosi, the Speaker of the House, said the President should be removed from office. Both proposed the Twenty-fifth Amendment to the Constitution, with Schumer describing it as the most effective legal means of removal. Under Section 4 of the amendment, which has been a subject of discussion throughout Trump’s Presidency, if a majority of the Cabinet were to join with Vice-President Mike Pence to declare to Congress that Trump is “unable to discharge the powers and duties of his office,” Pence would “immediately assume the powers and duties of the office as Acting President.” As Schumer said, “it can be done today.” The Cabinet was said to be considering it, but Pence reportedly opposes it. On Friday, Pelosi announced that the House would begin impeachment proceedings if Trump does not immediately resign. On Monday, at least a hundred and seventy House Democrats plan to introduce an article of impeachment charging Trump with “willfully inciting violence against the government of the United States.” There is little doubt that Trump did incite a mob to attack the Capitol in order to interfere with Congress’s performance of its constitutional duty in our democracy. On Wednesday, he gathered a crowd of thousands of supporters, fomented anger at an election that he falsely said had been stolen, and urged them to “walk down to the Capitol” and “fight much harder.”

An essay by Jeannie Suk Gersen: Donald Trump has regularly teased incriminating “tapes” of people whom he wanted to discredit; those have never materialized, but we are by now accustomed to tapes of his own perfidy. “Grab ’em by the pussy.” “I would like you to do us a favor, though.” And, now, in a phone call with Georgia’s secretary of state, Brad Raffensperger, “I just want to find eleven thousand seven hundred and eighty votes.” A recording of the call, from Saturday, published on Sunday by the Washington Post, shows that Trump attempted to coerce Raffensperger to “find” enough votes to overturn the results and warned of criminal consequences if the Georgia Republican did not. “I just want to find eleven thousand seven hundred and eighty votes, which is one more than we have,” Trump said. (Biden won Georgia by a margin of eleven thousand seven hundred and seventy-nine ballots.) The President suggested that “there’s nothing wrong with saying, you know, um, that you’ve recalculated.” On January 20th, the Justice Department’s stance that a President cannot be federally indicted while in office will no longer apply to Trump, so the question of whether he committed a crime is not merely theoretical. Federal election law makes it a crime to “knowingly and willfully” attempt to “deprive or defraud the residents of a State of a fair and impartially conducted election process” by the “tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.” Trump appears to have done just that, by asking Raffensperger to announce a fictitious finding of just enough ballots for Trump to win the state, and backing up this demand with a veiled threat of penalty if Raffensperger doesn’t comply.

An essay by Jeannie Suk Gersen: After the Electoral College cast its votes and affirmed his victory, on Monday, Joe Biden declared that “democracy prevailed” and “faith in our institutions held.” And Senate Majority Leader Mitch McConnell finally congratulated Biden as President-elect and Kamala Harris as Vice-President-elect. On January 6th, a joint session of Congress will officially count the votes. The result should be more than assured. But last week brought the shock of seeing seventeen Republican state attorneys general and more than half of House Republicans sign amicus briefs supporting Texas’s unsuccessful bid to have the Supreme Court prevent four states’ electoral votes from being cast. That astounding show of loyalty to Trump made it imaginable that Republican lawmakers, having failed to convince the Court to overturn the election result, would use Congress to attempt it. On December 13th, Representative Mo Brooks, Republican of Alabama, announced his intent to dispute Biden’s victory by challenging the votes of five swing states in the January congressional session. The group he will lead in the effort so far includes Representatives-elect Barry Moore, from Alabama, and Marjorie Taylor Greene, from Georgia. This year’s election and post-election period have felt unprecedented in so many ways, but there are long-standing rules for challenging electoral votes for President on the floor of Congress.

An essay by Jeannie Suk Gersen: In a Rose Garden ceremony last week, Donald Trump described his final Thanksgiving ritual at the White House as “the official Presidential pardon of a very, very fortunate turkey.” The annual theatrics of the President sparing a bird from the fate of its flock provide a humorous performance of a profound power: the ability to grant an exception to the rule of law. In the waning days of a Presidency known for exceptional self-dealing, it seemed seasonable that Trump followed up the symbolic ceremony by actually pardoning Michael Flynn, his former national-security adviser, who pleaded guilty, in 2017, to the crime of lying to federal investigators about his contacts with the Russian Ambassador during the 2016 Presidential transition. The remaining weeks will involve drama about other associates, officials, and family members whom Trump may or may not pardon on his way out, including those who haven’t been convicted or even indicted. The candidates include Trump himself, who has stated in a tweet, “I have the absolute right to PARDON myself.” Whether or not Trump will create, in the coming weeks, the spectacle of the first Presidential self-pardon, Democrats’ desires for accountability may clash with the Biden Administration’s need to move forward and restore normalcy.

An op-ed by Jeannie Suk Gersen: In the opening of her memoir, “The Truths We Hold,” from 2019, Vice-President-elect Kamala Harris writes that, as a law student, she found her “calling” while interning at the Alameda County District Attorney’s Office, in Oakland, California, in 1988. Harris then spent nearly three decades in law enforcement, referring to herself as “top cop,” rising from local prosecutor to district attorney of San Francisco and then attorney general of California—the first woman and the first Black person in these jobs—until she joined the U.S. Senate, in 2017. When I was in law school, twenty years ago, prosecution was a form of public service that was thought to carry little controversial baggage. Marked as neither liberal nor conservative, it was also an all-purpose route for young people who aspired to political or judicial positions. In recent decades, former prosecutors have been ubiquitous in public life. President Bill Clinton and multiple Presidential nominees and candidates—John Kerry and Chris Christie, for example—were once prosecutors. So were New York Governor Andrew Cuomo, Michigan Governor Gretchen Whitmer, and several dozen members of Congress, including Senators Amy Klobuchar, Kirsten Gillibrand, Richard Blumenthal, Doug Jones, and Josh Hawley. Countless federal judges have been prosecutors, among them Justices Sonia Sotomayor and Samuel Alito, and also President Barack Obama’s last Supreme Court nominee, Merrick Garland, whose prosecution of Timothy McVeigh, for the Oklahoma City bombing, in 1995, was soon followed by President Clinton’s nomination of Garland to the D.C. Circuit Court of Appeals.

Decades of Supreme Court Precedent says colleges can use affirmative action in admissions—but the court's new composition could change all that. In this episode, Harvard Law School professor Jeannie Suk Gersen breaks down everything you need to know about the lawsuit alleging that Harvard discriminates against Asian Americans in admissions. She explains why the stakes of this case may be different from what you think, and why the question of whether Harvard discriminates against Asian Americans can be treated separately from affirmative action. And she speaks so poignantly about her own experience as an Asian American in elite institutions: "At some point in my past," she says, "I might've been one of the students who might've been rated lower" by the "personal" score used in Harvard's admissions process. This is a moving, wide-ranging conversation that goes deeper than most analyses of the admissions lawsuit.

An article by Jeannie Suk Gersen: Among the “firsts” associated with the 2020 election, the most norm-shattering of all will be if the candidate who lost never concedes to the one who won. After the major news outlets called the election for Joe Biden on Saturday, Donald Trump switched from insisting, “I won this election, by a lot,” to claiming that his loss was due to election fraud. Trump’s conduct seemingly has not fazed President-elect Biden as he proceeds into the transition; at the least, it was not a surprise, since Trump spent months making ominous and ungrounded predictions of voter fraud. There is, however, a limit to what Biden’s team can do, particularly in national security, if the Trump Administration holds up a transfer of power, as the head of the General Services Administration has done thus far by not formally recognizing the transition.

No matter the vote count, legal challenges and resistance in Washington continue to make this election historically fraught. David Remnick speaks about the state of the race with some of The New Yorker’s political thinkers: Susan B. Glasser, Evan Osnos, Jeannie Suk Gersen, and Amy Davidson Sorkin. Plus, Jill Lepore on threats to democracy in the past and how they were addressed.

President Donald Trump and the Republicans have launched a number of lawsuits against battleground states where vote-counting continues, although judges in two states — Georgia and Michigan — had rejected their claims by Thursday afternoon. To discuss, Jim Braude was joined by Margery Eagan of GBH News and Jeannie Suk Gersen, a professor at Harvard Law School and a contributing writer at the New Yorker magazine.

An op-ed by Jeannie Suk Gersen: During Donald Trump’s Presidency, we have called political events “constitutional crises” far more often than in any period in memory. Before 2016, the term was used rarely, and the last time there was concern about a possible constitutional crisis was in the aftermath of the Presidential election of 2000, which culminated in the Supreme Court’s Bush v. Gore decision, more than a month after Election Day. As we approach the decision’s twentieth anniversary, with a President who has promised to take the election results to the Court, we may be facing a possible repeat of those events—and perhaps a genuine constitutional crisis around the Presidential election, which could prove much more chaotic and difficult to resolve. A constitutional crisis is not merely an instance of the Constitution being disobeyed or going unenforced. It is, rather, a much more confounding situation, in which two branches of government are in an active conflict with each other but our constitutional rules and norms do not tell us how to resolve it. There was a true constitutional crisis around the Presidential election of 1876, when neither Samuel J. Tilden, a Democrat, nor Rutherford B. Hayes, a Republican, won a majority of the Electoral College. (Tilden won the popular vote.) In Florida, South Carolina, and Louisiana, where vote counts were close and products of manipulation, rival Democratic and Republican electors attempted to get Congress to recognize their votes. To end a months-long political conflict, which was marked by intimidation, disenfranchisement, and threats of violence, Congress appointed a bipartisan electoral commission, consisting of members of each house and the Supreme Court. The commission reached an ugly compromise, to withdraw federal troops from the South, effectively ending Reconstruction, in exchange for awarding the disputed states’ electoral votes to Hayes, who became President.

Donald Trump has changed the ideological cast of our entire federal court system, appointing the most appellate-court judges in a single term since Jimmy Carter, along with three conservative Justices to the Supreme Court. Jeannie Suk Gersen, a contributing writer and a professor at Harvard Law School, unpacks the complicated question of court-packing. Joe Biden’s cautious engagement with the strategy, she thinks, is smart politics. The Supreme Court’s members “do not want to see Congress mess with the number of Justices on the Court or the terms,” she tells David Remnick. “So they now also understand . . . that they’re being watched with an idea that the institution can change without their being able to control it.”

The Presidency of Donald Trump has been unlike any other in America’s history. While many of his core promises remain unfulfilled, he managed to reshape our politics in just four years. On the cusp of the 2020 election, David Remnick assesses the Trump Administration’s impact on immigration policy, the climate, white identity politics, and the judiciary. He’s joined by Jeannie Suk Gersen, Jonathan Blitzer, Bill McKibben, Keeanga-Yamahtta Taylor, and Andrew Marantz.

An op-ed by Jeannie Suk Gersen: This week, Amy Coney Barrett begins her life-tenured appointment as the newest Supreme Court Justice. If she lives as long as did Ruth Bader Ginsburg, whom she replaces, she could serve on the Court for four decades. Barrett’s confirmation may be the last act of a Republican majority for years. In Barrett’s first days as a Justice, the election results will likely flip the party of the President and of the Senate that swiftly confirmed her. Indeed, as it became increasingly clear this fall that the Democrats would probably win the Presidency and both houses of Congress, it became all the more important for the Republicans to push through a Court confirmation while they could. As Mitch McConnell, the Senate Majority Leader, put it, on Sunday, “a lot of what we’ve done over the last four years will be undone sooner or later by the next election,” but Democrats “won’t be able to do much about this for a long time to come.” Democrats certainly can’t undo Barrett’s appointment to the Court, but with the expectation of being able to wield power soon, they have stepped up a discussion of “court-packing,” in order to undermine a 6–3 conservative majority that otherwise may be entrenched for a generation. Some have protested that court-packing would be an abuse of power, but political maneuvering over Court seats dates to the beginning of the country. When Congress established the Supreme Court, in 1789, it stipulated that the Court should have six Justices. Twelve years later, Thomas Jefferson won a bitterly fought campaign against President John Adams, and control of Congress flipped from Adams’s Federalist Party to Jefferson’s Democratic-Republicans. During the lame-duck Congress, the Federalists attempted to hold onto some power by legislating that the next Justice to retire would not be replaced, reducing the Court’s total number to five. But Jefferson and the new Congress changed the number back to six and eventually added another seat. During the following decades, the number of Justices rose to nine, and then to ten, and then came back down to nine.

An op-ed by Jeannie Suk Gersen:  Throughout the past four years, there has been chatter about Donald Trump’s mental health and stability, but little political will to make use of the Twenty-fifth Amendment to the Constitution, which allows Congress to deem a President “unable to discharge the powers and duties of his office” and remove him from power. The discussion resurfaced more seriously this month, however, in light of Trump’s hospitalization for covid-19 and the White House’s lack of transparency around his treatment. The news that he was medicated with the steroid dexamethasone, used for seriously ill covid-19 patients, also alarmed many because its known side effects include aggression, agitation, and “grandiose delusions”—behaviors that, judging from the President’s Twitter account, at least, he already seemed to exhibit. On October 9th, House Speaker Nancy Pelosi unveiled a new bill to establish a Commission on Presidential Capacity to Discharge the Powers and Duties of the Office, which would help carry out the Twenty-fifth Amendment process in the event that the President becomes incapable of doing his job. (Sponsored by the Democratic representative and former constitutional-law professor Jamie Raskin, of Maryland, the House bill is similar to one he introduced in 2017.) Announcing the bill only a week after disclosure of the President’s covid-19 diagnosis and three weeks before the election, Pelosi invoked the Amendment as a “path for preserving stability if a President suffers a crippling physical or mental problem.” She added, “This is not about President Trump. He will face the judgment of the voters, but he shows the need for us to create a process for future Presidents.” Section four of the Twenty-fifth Amendment provides two distinct avenues for removing a President against his will. In one, the Vice-President joins with a majority of the Cabinet to send Congress a written declaration that the President is unable to serve. In the other, the Vice-President does so along with a majority of “such other body as Congress may by law provide.”

An op-ed by Jeannie Suk Gersen: My one real conversation with Justice Ruth Bader Ginsburg took place in 2004, when I was a law clerk for Justice David Souter. Ginsburg invited my colleagues and me for tea in her chambers, where she served pastries baked by her husband. Ginsburg recalled the initial revelation of the term “sexual harassment,” which put a name to a phenomenon that, she said, “every woman” understood. Among her stories was one that is widely known today, about the sexism of the nineteen-fifties. When Ginsburg was a student at Harvard Law School, the handful of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man. Four decades later, when Justice Byron White, who had dissented in Roe v. Wade, retired from the Supreme Court, the spot that opened up did not go to a man but to Ginsburg, who by then was a judge on the D.C. Circuit and a longtime heroine of the women’s movement. And, in just a few weeks, her seat will likely be occupied by another woman, the Court’s fifth ever: Amy Coney Barrett, another circuit-court judge and a former professor at Notre Dame Law School, whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg’s legacy. When President Trump announced Barrett’s nomination, on September 26th, she paid homage to Ginsburg, who “began her career at a time when women were not welcome in the legal profession,” and promised that, if confirmed, she will “be mindful of who came before me.” But Barrett, who clerked for Justice Antonin Scalia, is a conservative; she said that Scalia’s “judicial philosophy is mine, too.” During her confirmation hearings, she has been asked to justify replacing a great liberal feminist Justice, taking a spot that, after the election, could perhaps have gone to a Democrat.